Doss v. Farmers Ins. Co.

No. 572 June 24, 2026 831

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

Rachel DOSS,

Plaintiff-Appellant,

v.

FARMERS INSURANCE COMPANY OF OREGON,

a corporation,

Defendant-Respondent.

Multnomah County Circuit Court

21CV13865; A186254

Angela F. Lucero, Judge.

Argued and submitted March 4, 2026.

Willard E. Merkel argued the cause for appellant. Also

on the opening brief was Merkel & Associates. Also on the

reply brief was Merkel & Conner, LLC.

Thomas M. Christ argued the cause for respondent. Also

on the brief was Sussman Shank LLP.

Before Egan, Presiding Judge, Pagán, Judge, and Kistler,

Senior Judge.

KISTLER, S. J.

Reversed and remanded.

832 Doss v. Farmers Ins. Co.

KISTLER, S. J.

This is the second appeal in this case. Initially,

plaintiff appealed the general judgment and challenged the

trial court’s denial of her attorney fee request. We affirmed

the judgment, reasoning that the attorney fee ruling plain-

tiff challenged was not final when the trial court entered

the general judgment and thus was not before us. See Doss

v. Farmers Insurance Company, 334 Or App 826 (2024) (Doss

I) (nonprecedential memorandum opinion). After we issued

our decision, plaintiff returned to the trial court and filed a

motion asking the court to either amend the general judg-

ment or enter a supplemental judgment resolving her attor-

ney fee request. The trial court entered an order denying

that motion, which plaintiff now appeals. We reverse and

remand.

We state the facts consistently with our decision

in Doss I. Plaintiff was injured in an automobile accident.

After settling with the tortfeasor, plaintiff brought this

action against her insurer (defendant) to recover underin-

sured motorist benefits under defendant’s policy. The case

was tried to a jury, which found that plaintiff had sustained

approximately $350,000 in damages. That verdict exceeded

the tortfeasor’s policy limits and allowed plaintiff to recover

underinsured motorist benefits from defendant. The trial

court signed a general judgment on January 19, 2023, which

reflected the verdict.

Later, plaintiff filed a request to recover her attor-

ney fees under ORS 742.061(1). Defendant responded that a

“safe harbor” provision in ORS 742.061(3) shielded it from

liability for plaintiff’s attorney fees. Specifically, defendant

noted that it had given plaintiff timely written notice that it

“accepted coverage,” that “the only issues are the liability of

the uninsured or underinsured motorist and the damages

due the insured,” and that defendant “consented to submit

the case to binding arbitration.” See ORS 742.061(3) (identi-

fying those prerequisites for coming within the safe harbor).

Plaintiff, for her part, did not dispute that defen-

dant’s written notice brought it within the safe harbor

that ORS 742.061(3) provides. She argued, however, that

Cite as 350 Or App 831 (2026) 833

defendant had left the safe harbor because its answer

raised issues beyond those that ORS 742.061(3) permits. On

January 27, 2023, the trial court held a hearing on plain-

tiff’s attorney fee request, which it denied. The court entered

a general judgment on the morning of February 1, 2023, and

signed an order denying plaintiff’s fee request that day. On

February 3, plaintiff filed a notice of appeal from the general

judgment. On February 10, 2023, the trial court entered an

order denying plaintiff’s fee request.

Plaintiff appealed, assigning error to the trial

court’s ruling denying her fee request. We did not reach the

merits of that ruling. We observed that we “ ‘can address

issues related to attorney fees only on appeal from a judg-

ment that is final as to the matter of attorney fees, including

a determination of any fee amount.’ ” Doss I, 334 Or App at

827 (quoting Lehman v. Bielenberg, 257 Or App 501, 511, 307

P3d 478 (2013); emphasis added in Doss I). We explained

that a “judgment is ‘final’ as to attorney fees when it resolves

all issues regarding [a party’s] request for attorney fees.” Id.

at 827-28 (quoting Petersen v. Fielder, 170 Or App 305, 310,

13 P3d 114 (2000); brackets added in Doss I). We noted, how-

ever, that the general judgement did “not resolve any issues

regarding [plaintiff’s] attorney fee request.” Id. at 828.

Because the trial court’s fee ruling was not final when the

court entered the general judgment, we affirmed the court’s

judgment. Id.

Five days after we issued our decision, plaintiff

returned to the trial court and asked it to do one of two

things, each of which rests on a different view of the record.

Initially, plaintiff asserted that the trial court had finally

resolved her fee request before it entered the general judg-

ment, and she asked the trial court to amend the general

judgment to reflect that fact. Alternatively, she argued that,

if the trial court’s denial of her fee request was not final

before the trial court entered the general judgment, then the

court should have entered a supplemental judgment rather

than an order denying her fee request. Plaintiff argued that,

under either view of the record, she could not appeal the

denial of her fee request unless the court first entered either

an amended general judgment or a supplemental judgment.

834 Doss v. Farmers Ins. Co.

The trial court declined plaintiff’s request, and she appeals

from that order.

Plaintiff renews both requests on appeal. We begin

with her request to amend the general judgment. That

request is based on the proposition that the trial court’s rul-

ing denying attorney fees was final before the court entered

the general judgment. Plaintiff’s initial request is at odds

with our decision in Doss I. In that decision, we held that the

trial court’s fee ruling was not final when the court entered

the general judgment. See id. at 827-28. It was for that rea-

son that plaintiff’s appeal from the general judgment did

not include the attorney fee ruling she sought to challenge

in Doss I. Id.

Defendant notes that, under the “law of the case”

doctrine, our first decision is controlling. We agree. See

State v. Pratt, 316 Or 561, 569, 853 P2d 827 (1993) (holding

that an earlier appellate ruling that a warrantless arrest

was constitutional precluded reconsidering that issue on the

defendant’s second appeal). As the court reaffirmed in Pratt:

“ ‘It is a general principle of law and one well recognized

in this state that when a ruling or decision has been once

made in a particular case by an appellate court, while it

may be overruled in other cases, it is binding and conclu-

sive both upon the inferior court in any further steps or

proceedings in the same litigation and upon the appellate

court itself in any subsequent appeal or other proceeding

for review.’’’

Id. (quoting Simmons v. Wash. F. N. Ins. Co., 140 Or 164,

166, 13 P2d 366 (1932)). Plaintiff identifies no reason why

that doctrine does not apply here. We accordingly follow our

decision in Doss I and conclude that the premise on which

plaintiff’s initial argument rests—that the trial court’s rul-

ing denying attorney fees was final before the court entered

the general judgment—is not well taken.

We turn to plaintiff’s alternative request. That

request starts from the proposition that, as we held in Doss I,

the court’s ruling denying plaintiff’s fee request was not final

when the court entered the general judgment on February

1, 2023. Relying on ORCP 68 C(5)(b)(i), plaintiff argues that

the trial court was required to enter its post-judgment fee

Cite as 350 Or App 831 (2026) 835

ruling as a supplemental judgment.1 Plaintiff contends that,

unless and until the court entered its ruling as a supple-

mental judgment, she could not appeal it pursuant to ORS

19.205(1).2

As we understand defendant’s response, defendant

argues that there is no material difference between the sup-

plemental judgment that plaintiff asked the court to enter

on remand and the order denying plaintiff’s request for

attorney fees that the court entered on February 10, 2023.

Relatedly, defendant argues that plaintiff could and should

have appealed the February 10 order pursuant to ORS

19.205(3), and that her failure to do so effectively disposes of

her current appeal.3

Defendant’s argument is at odds with the terms

of House Bill (HB) 2646 (2003), which “comprehensively

revised the statutes governing judgments.” See Garcia

v. DMV, 195 Or App 604, 606, 99 P3d 316 (2004); see also

Galfano v. KTVL-TV, 196 Or App 425, 102 P3d 766 (2004).

As we explained in Garcia, “[w]ith the new statutory scheme

[enacted in HB 2646], the legislature parted company with

past practice by devising a more formal and seemingly intri-

cate scheme of judgment subcategories or ‘types.’ ” Id. at 609.

Central to that new, “more formal” scheme are a series of

definitions and rules set out in ORS chapter 18. See Galfano,

196 Or App at 432-37 (carefully working through the defini-

tions in ORS 18.005 in concluding that an incorrectly cap-

tioned judgment document was appealable).

For example, we explained in Galfano that, even

though it was clear that the trial court had intended to enter

an appealable supplemental judgment, the court had incor-

rectly captioned the judgment document as a “supplemental

1

ORCP 68 C(5)(b)(i) provides that “[i]f any issue regarding attorney fees * * *

is not decided before entry of a general * * * judgment, any award or denial of

attorney fees * * * shall be made by supplemental judgment.”

2

ORS 19.205(1) provides that, “[u]nless otherwise provided by law, a lim-

ited judgment, general judgment or supplemental judgment, as those terms are

defined by ORS 18.005, may be appealed as provided in this chapter.”

3

ORS 19.205(3) provides that “[a]n order that is made in the action after a

general judgment is entered and that affects a substantial right, including an

order granting a new trial, may be appealed in the same manner as provided in

this chapter for judgments.”

836 Doss v. Farmers Ins. Co.

general judgment.” 196 Or App at 431. In determining

whether the judgment reflected in that document could be

appealed, we undertook an extensive examination of the

definitions set out in ORS 18.005 before concluding that the

substance of the ruling qualified as a “supplemental judg-

ment” and that the judgment document included the min-

imum formal requirements that ORS chapter 18 specifies.

See id. at 432-37. Defendant’s argument does not focus on

the formal requirements that the 2003 Legislature enacted

in HB 2646. Rather, its argument is reminiscent of what we

described in Garcia as the “past practice” of looking at the

trial court’s intent without regard to matters of form.

Of course, our conclusion that defendant’s argument

is directed at the wrong target does not necessarily mean

that plaintiff correctly argues that the February 10, 2023,

order was not appealable. However, as we explain below, the

definitions set out in ORS 18.005, read in light of our deci-

sion in Galfano, establish that an attorney fee ruling that

is not final before entry of the general judgment must be

entered as a supplemental judgment; it may not be entered

as an order; and it must, at a minimum, be labeled as a

judgment. Because the court’s February 10, 2023, order did

not meet those prerequisites, we agree with plaintiff that

she could not have appealed it.

We explain the bases for our conclusion briefly. ORS

18.005(17) provides that “ ‘[s]upplemental judgment’ means

a judgment that may be rendered after a general judgment

pursuant to a legal authority.” As we explained in Galfano,

that definition requires that a ruling must qualify initially

as a “judgment” and additionally as a “supplemental judg-

ment.” 196 Or App at 432. A judgment is “the concluding

decision of a court on one or more requests for relief in one or

more actions, as reflected in a judgment document.” See ORS

18.005(8) (defining “judgment”). We concluded in Galfano

that a fee ruling that becomes final after the entry of a gen-

eral judgment is a “judgment.” 196 Or App at 432-35.

Moreover, an attorney fee ruling that becomes final

after a general judgment is entered constitutes a “supple-

mental judgment” for the purposes of ORS 18.005(17); that

is, ORCP 68 C(5)(b)(i) is a “legal authority” that permits

Cite as 350 Or App 831 (2026) 837

(indeed requires) entering the post-judgment fee ruling as

a “supplemental judgment.” See Galfano, 196 Or App at 437.

As we explained in Galfano, the 2003 Legislature “intended

ORCP 68 to be consistent with the new types of judgments

[set out in ORS 19.205] and understood the references in

ORCP 68 C(5)(b) to a ‘supplemental judgment’ for attorney

fees to be consistent with the term ‘supplemental judgment’

as defined in [former] ORS 18.005(15) [(2003), renumbered

as ORS 18.005(17) (2005)].” 196 Or App at 434-35. Reading

the definitions in ORS 18.005 together with Galfano, we con-

clude that an attorney fee ruling that becomes final after

the entry of a general judgment is a supplemental judgment.

It is not an order.4

A judgment must be included in a judgment doc-

ument that, at a minimum, is “plainly titled ‘judgment.’ ”

Galfano, 196 Or App at 435 (quoting ORS 18.038(1) and ORS

18.005(8)); see Garcia, 195 Or App at 613. If a ruling that

constitutes a judgment is not plainly titled as a judgment,

it is not appealable. Galfano, 196 Or App at 436; Garcia,

195 Or App at 609. Given our decision in Doss I, we agree

with plaintiff that the February 10, 2023, order denying

her attorney fee request was not appealable. The trial court

erred in denying plaintiff’s motion to enter a supplemental

judgment.5

The question that remains is whether the trial

court also erred in denying plaintiff’s attorney fee request.

The parties have briefed that issue twice, once in Doss I and

4

We recognize that ORS 18.029 provides that “[t]he provisions of this chap-

ter do not impose any requirement that a court use a judgment for the court’s

concluding decision on a request for relief if a legal authority allows or requires

that the court decide that request for relief by order or other means.” However,

defendant does not identify any legal authority that allows an attorney fee rul-

ing that becomes final after the entry of a general judgment to be entered as an

order. Rather, ORCP 68 C(5)(b)(i) provides that such a ruling must be entered as

a judgment.

5

Defendant argues that plaintiff “clearly waived” any objection to the form

of the February 10, 2023, order by not objecting when the court entered it. We

note that, in both the briefing and oral argument in Doss I, both parties assumed

that the trial court’s fee ruling was final before entry of the general judgment. It

was not until after we issued our decision in Doss I that either party reasonably

became aware of the procedural problem we identified in Doss I. Five days after

we issued Doss I, plaintiff asked the trial court to enter its attorney fee ruling

as a supplemental judgment. On this record, we disagree with defendant that

plaintiff waived her objection to the form of the order.

838 Doss v. Farmers Ins. Co.

again in this appeal. The issue is almost certain to arise on

remand, and we conclude that it is appropriate to resolve the

issue now. See Westwood Construction Co. v. Hallmark Inns,

182 Or App 624, 639, 50 P3d 238, rev den, 335 Or 42 (2002)

(addressing attorney fee dispute likely to arise on remand);

cf. State v. Savage, 305 Or App 339, 470 P3d 387 (2020) (gen-

erally recognizing that authority). We accordingly turn to

the merits of plaintiff’s fee claim.

ORS 742.061(1) provides that a person seeking

underinsured motorist benefits from their insurer “is enti-

tled to recover reasonable attorney fees if [a] timely settle-

ment is not made and the plaintiff’s recovery exceeds the

[insurer’s] tender.” See Kiryuta v. Country Preferred Ins. Co.,

360 Or 1, 3, 376 P3d 284 (2016) (describing ORS 742.061(1)).

In this case, defendant does not dispute that plaintiff’s dam-

ages exceeded defendant’s tender, which ordinarily would

entitle her to recover her attorney fees. Defendant, however,

invoked ORS 742.061(3), which shields insurers from paying

attorney fees “when the insurer, in [a timely] writing, has

accepted coverage; the only issues are ‘the liability of the

uninsured or underinsured motorist’ and ‘the damages due

the insured,’ and the insurer has consented to submit the

case to binding arbitration.” Id. (quoting ORS 742.061(3)).

As noted, plaintiff does not dispute that defendant

sent her a timely letter that complied with the terms of ORS

742.061(3). The only question is whether defendant raised

issues beyond those that ORS 742.061(3) permits and thus

lost the protection that ORS 742.061(3) provides. On that

question, plaintiff notes that defendant’s answer denied,

among other things, paragraphs six and nine of her com-

plaint. Paragraph six alleged that the tortfeasor “was an

underinsured motorist because the automobile liability

benefits available to her [under the tortfeasor’s policy] were

inadequate to pay all of the damages” that plaintiff sus-

tained. Paragraph nine alleged that:

“Plaintiff has in all things conformed to and observed and

performed according to the policy and the conditions thereto

annexed, including obtaining Defendant’s permission and

consent to her settlement with [the] tortfeasor [and the

tortfeasor’s insurer], and including all requirements of the

Cite as 350 Or App 831 (2026) 839

un[der]insured motorist coverage of the aforesaid insur-

ance policy and the UM/UIM statutory provisions found at

ORS 742.504 et seq.”

Finally, plaintiff notes that defendant denied her request

to admit that plaintiff “has sustained all of the obligations

required of [her] in order to be eligible for the payment of

[UIM] benefits” under defendant’s policy.

Plaintiff argues that each of those denials took

defendant out of the safe harbor that ORS 742.061(3) pro-

vides. We need not decide whether defendant’s answer deny-

ing paragraph six took it out of the safe harbor. Even if it did

not, defendant’s answer denying paragraph nine did.

ORS 742.061(3) provides that the safe harbor is

available only if the insurer “accept[s] coverage.” In deny-

ing paragraph nine, defendant did not accept coverage. It

denied it. If defendant had accepted coverage, it would have

admitted paragraph nine; that is, it would have admitted

that plaintiff had complied with all the applicable terms and

conditions of its policy. Substantively, denying paragraph

nine of plaintiff’s complaint does not differ materially from

the affirmative defense the insurer alleged in Kiryuta—that

the insured’s eligibility to recover uninsured motorist ben-

efits was “subject to all [the] terms and conditions of the

policy of insurance, including UIM/UM limits and ‘other

clauses.’ ” See 360 Or at 4 (describing the insurer’s affirma-

tive defense). The court held in Kiryuta that alleging that

defense took the insurer out of the safe harbor. Defendant’s

denial of paragraph nine had the same effect here.6

Defendant advances three arguments why, despite

its denial of paragraph nine, it stayed within the safe harbor.

We begin with defendant’s broadest argument. Defendant

contends that “an insurer’s reference in its pleading to an

6

Defendant’s denial in this case and the insurer’s affirmative defense in

Kiryuta differ procedurally, but they do so in a way that places a greater burden on

plaintiff. In Kiryuta, the burden of production and persuasion was on the insurer

to prove its affirmative defense. In this case, defendant’s denial of paragraph nine

left the burden of production and persuasion on plaintiff to prove the allegations

in that paragraph. Ultimately, however, what matters in determining, at least

initially, whether an insurer remains within the safe harbor that ORS 742.061(3)

provides is whether the insurer’s pleadings put substantive issues in play that go

beyond what ORS 742.061(3) permits. See Kiryuta, 360 Or at 5.

840 Doss v. Farmers Ins. Co.

issue beyond damages and the liability of the underinsured

motorist does not itself take the case outside of the ORS

742.061(3) safe harbor if, as it turns out, the parties don’t

actually litigate the extraneous issue at trial.” (Emphasis in

original.) Defendant notes that its trial memorandum only

disputed the damages due plaintiff and that the sole issue

that ended up being litigated at trial was one that ORS

742.061(3) permits. It follows, defendant concludes, that it

stayed within the safe harbor.

Defendant’s argument is at odds with both our and

the Supreme Court’s opinions in Kiryuta. In our opinion,

we noted that the insurer argued that, even if its plead-

ings asserted issues that went beyond what ORS 742.061(3)

permits, “no issues other than the damages due [the] plain-

tiff were litigated in the arbitration” hearing. See Kiryuta

v. Country Preferred Ins. Co., 273 Or App 469, 473-74, 359

P3d 480 (2015), aff’d, 360 Or 1, 376 P3d 284 (2016) (describ-

ing the insurer’s arguments). For that reason, the insurer

contended that it stayed within the safe harbor that ORS

742.061(3) provides.

We reached a different conclusion. We explained

that the “fact that [the insurer] may not have followed

through with [its] litigation strategy at the arbitration pro-

ceeding makes no difference.” Id. at 474. The insurer had not

amended its pleadings to eliminate the affirmative defense,

and the insured “had to be prepared at the arbitration hear-

ing to meet any proof that [the insurer] might offer consis-

tent with its pleadings.” Id. at 474-75. We concluded that,

in those circumstances, the insurer’s last-minute change of

heart was not sufficient to keep it within the safe harbor. Id.

In reaching that conclusion, we did not foreclose the possibil-

ity that an insurer could “amend[ ] its pleadings in a timely

way or otherwise demonstrat[e] that only the issues of liabil-

ity and damages are in dispute so as to conform them to the

requirements of ORS 742.061(3).” Id. at 475 n 1. The insurer

had not done that, however.

The Supreme Court affirmed our decision in

Kiryuta. See 360 Or at 8. Focusing on the pleadings, the

court reasoned that, “[w]hen, as framed by the pleadings,

the ‘issues’ for arbitration are not limited to ‘the liability of

Cite as 350 Or App 831 (2026) 841

the uninsured or underinsured motorist’ and ‘the damages

due the insured,’ the insurer is not entitled to the protec-

tion of ORS 742.061(3).” 360 Or at 5. The court noted the

possibility, as we had, that the insurer might have stayed

within the safe harbor if it had amended its pleadings in a

timely way to limit the disputed issues to those that ORS

742.061(3) permits; however, it had not done so. Id. at 8 n 5.

The court accordingly rejected, as we had, the argument

that an insurer can stay within the safe harbor if it waits

until shortly before the arbitration hearing begins to limit

the issues raised by its pleadings.

In this case, defendant filed its answer denying

paragraph nine in mid-April. Defendant did not narrow the

issues raised by its pleadings until it filed its trial memoran-

dum on December 9, three days before trial began. It follows

from both our opinion and the Supreme Court’s opinion in

Kiryuta that defendant’s first argument fails.

Defendant’s second argument is a narrower version

of its first argument. Specifically, defendant relies on our

decision in Robinson v. Tri-Met, 277 Or App 60, 370 P3d 864

(2016), rev den, 361 Or 886 (2017), which we issued three

months before the Supreme Court’s decision in Kiryuta. In

Robinson, we distinguished our decision in Kiryuta, but

we could not and did not consider whether our reasoning

in Robinson was consistent with the Supreme Court’s later

decision in Kiryuta.7 With that preface, we turn to our deci-

sion in Robinson.

In Robinson, we described two categories of plead-

ings that raise issues that go beyond what ORS 742.061(3)

permits: (1) pleadings that “generally reserv[e] the prospect

to deny coverage” and (2) pleadings that raise only what

we described as a “nonissue.” See 277 Or App at 71-73. We

explained that the pleadings in Kiryuta were an example

of the first type of pleadings—pleadings that “effectively

7

We note the point because the Supreme Court described the issues raised

by the insurer’s affirmative defense in Kiryuta more narrowly than we did.

Compare Kiryuta, 360 Or at 8 (interpreting the affirmative defense in light of the

insurer’s admissions in its answer), with Kiryuta, 273 Or App at 481 (describing

the affirmative defense only by its title “Contractual Compliance”). Arguably, the

Supreme Court’s more specific description of that defense could call into question

the way that Robinson distinguished our decision in Kiryuta.

842 Doss v. Farmers Ins. Co.

reserve[ed] all coverage defenses.” Id. at 71. Focusing on

the first category of pleadings, we reaffirmed our holding in

Kiryuta that “an insurer cannot qualify for the fee exemp-

tion by seeming to accept coverage in the ‘safe harbor’ letter

while generally reserving the prospect to deny coverage.”

Id. That was so even if the insurer limited the issues liti-

gated at the arbitration hearing or trial to the issues ORS

742.061(3) permits.

We described the second category of pleadings as

ones that allege a “nonissue.” Id. at 73. We identified two

characteristics of pleadings that allege a “nonissue.” First,

the pleading alleges an undisputed policy term that is

directed at an issue, such as an offset, that arguably bears

on the damages due the insured. Id. (identifying offsets as

the sort of policy term that potentially could “affect the cal-

culation of sums to be paid”). Second, a nonissue involves

“no actual dispute between the parties about the existence,

meaning, or enforceability of an undisputed provision.” Id.

We explained that, when the pleadings allege only a nonis-

sue, a court may look to the “whole of the case,” including

the issues actually litigated at trial or arbitration, to deter-

mine whether an insurer has left the safe harbor that ORS

742.061(3) provides. Id. We followed Robinson in Berger

v. Safeco Ins. Co., 305 Or App 380, 386-87, 470 P3d 420,

rev den, 367 Or 290 (2020).

As we understand defendant’s second argument, it

rests on the proposition that any issues raised by its denial

of paragraph nine were at most “nonissues,” as Robinson

defined that term. It follows, defendant reasons, that we can

and should look to the issues actually litigated at the trial in

this case to determine whether defendant stayed within the

safe harbor. In considering defendant’s second argument,

we need not decide whether there is any tension between

our reasoning in Robinson and the Supreme Court’s deci-

sion in Kiryuta. Even if we assume that our reasoning in

Robinson is consistent with the court’s decision in Kiryuta,

defendant’s second argument still fails.

In this case, defendant broadly denied coverage

when its answer denied that plaintiff had “in all things con-

formed to and observed and performed according to the policy

Cite as 350 Or App 831 (2026) 843

and the conditions thereto annexed.” That pleading did not

allege a “nonissue.” Rather, it alleged a general denial of cov-

erage, which falls within the first category of pleadings that

Robinson identified. That is, even if Robinson’s distinction

between two categories of pleadings is good law, our decision

in Kiryuta controls, and defendant’s last-minute decision to

narrow the issues for trial does not permit defendant to take

advantage of the protections that ORS 742.061(3) provides.

Defendant’s final argument presents a different

issue. Defendant relies on ORCP 20 A for the proposition

that its answer denying paragraph nine had no appreciable

effect on what plaintiff had to prove at trial. ORCP 20 A

states a rule for pleading conditions precedent. It provides:

“In pleading the performance or occurrence of conditions

precedent, it is sufficient to allege generally that all con-

ditions precedent have been performed or have occurred.

A denial of performance or occurrence shall be made spe-

cifically and with particularity, and when so made the

party pleading the performance or occurrence shall on

the trial establish the facts showing such performance or

occurrence.”

As we understand defendant’s argument, it assumes that

paragraph nine of plaintiff’s complaint alleged only that

plaintiff had complied with all conditions precedent. It fol-

lows from ORCP 20 A, defendant reasons, that its general

denial of paragraph nine meant that plaintiff could recover

under the policy without having to prove at trial that she

had satisfied any specific condition precedent. Apparently,

in defendant’s view, its answer denying paragraph nine, in

effect, admitted it.

One difficulty with defendant’s argument is the

assumption that underlies it. We agree with defendant that

paragraph nine includes an allegation that plaintiff had

complied with all conditions precedent. But that is not all

that paragraph nine alleges. It also alleges that plaintiff

“has in all things conformed to and observed and performed

according to the policy and the conditions thereto annexed.”

The phrase “all things” is broad. It includes but is not lim-

ited to conditions precedent. It follows that, even if ORCP

20 A relieved plaintiff of the obligation to prove that she

844 Doss v. Farmers Ins. Co.

had complied with specific conditions precedent, it did not

relieve her of the obligation to prove that she had complied

with the other policy terms and conditions that defendant’s

denial of paragraph nine put at issue.

The Supreme Court considered a similar argument

in Kiryuta. See 360 Or at 8. The court acknowledged that

the insurer’s answer in that case

“admitted that [the insured] had conformed to all policy

conditions and requirements and had performed all precon-

ditions to the recovery of benefits. However, the admissions

in that paragraph do not address other provisions of the

insurance policy that potentially could preclude coverage of

plaintiff’s losses and therefore do not demonstrate that [the

insurer] accepted coverage. Moreover, the insurer’s ‘con-

tractual compliance’ defense is broadly worded and permits

[the insurer] to invoke any of the ‘terms and conditions’ of

the insurance policy to defeat [the insured’s] claim.”

Id. The court held that, in those circumstances, the insurer

was not entitled to the protection of ORS 742.061(3). Id.

As we understand the Supreme Court’s reasoning in

Kiryuta, it recognized that, even though the insurer admit-

ted that the insured had performed all conditions precedent,

it did not admit that the insured had satisfied other policy

provisions that could potentially preclude coverage.8 See id.

The same reasoning applies here to what defendant per-

ceives is the effect of its denial of paragraph nine, viewed

through the lens of ORCP 20 A. Following the Supreme

Court’s decision in Kiryuta, we hold that defendant is not

entitled to the protections of ORS 742.061(3). We accordingly

reverse the trial court’s order and remand this case for fur-

ther proceedings consistent with this decision.

Reversed and remanded.

8

Moreover, the insurer’s concession in Kiryuta was not limited to conditions

precedent but included all “policy conditions and requirements.” See 360 Or at 8.

The court still concluded that the insurer’s concession left the insured exposed to

“other provisions of the insurance policy that potentially could preclude coverage

of plaintiff’s losses.” Id.